Government agents will continue to do as much harm as courts permit them to do

In September of 2013 an inmate in Texas named Trent Taylor was held in horrific unsanitary conditions for nearly a week he says. According to a lawsuit filed by Taylor against the prison guards he says are responsible “almost the entire surface—including the floor, ceiling, window, walls, and water faucet—was covered with ‘massive amounts’ of feces that emitted a ‘strong fecal odor.’”

Taylor was kept in the cell naked unable to eat because he feared contamination due to all of the aforementioned shit. He couldn’t drink anything either because there was feces “packed inside the water faucet” he alleges. The guards knew about all this he says but laughed it off. They told him at one point he was “going to have a long weekend” he says.

After that he was moved to a second cell that was a little bit better in that the sink and water fountain and bunk weren’t covered in shit but that’s only because the cell didn’t have any of those things. Instead there was simply a drain on the floor he says he was instructed to urinate into but it was so backed up he didn’t dare because he feared he would end up sleeping in a puddle of his own overflowing piss.

Taylor later sued a series of guards at the facility who he says violated his rights and they countered with a claim of Qualified Immunity which a district court affirmed. Qualified Immunity is a controversial doctrine despised by people who believe in such things as civil liberties that essentially allows cops and other government agents like prison guards to do whatever the fuck they want to you if they are not violating a previously clearly established right and fuck you if you don’t like it. We talked about it in this Hell World back in September in a story about a California business that was raided by police who believed it was an illegal gambling ring. The business was ultimately not charged with any crime but police kept the cash and jewels they seized and the courts said it was cool because there was no clearly established legal precedent that explicitly states that the police stealing shit that they obtain during a lawful seizure is illegal and therefore there is no way that the cops in this case could have known not to do the stealing.

“Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong,” that court wrote.

“We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.”

Cool shit!

In the Taylor prison conditions case the Fifth Circuit used a similarly maddening logic-defying-logic on Taylor’s appeal and upheld the Qualified Immunity of the prison guards. Basically there is no clearly established case that says forcing a prisoner to sleep naked in a filthy cell is a violation of his rights they said.

You can read their finding here.

The defendants did not have “fair warning” that making a guy live in a toilet for a week was a violation they said.

“Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end we hadn’t previously held that a time period so short violated the Constitution…”

Only six days.

To top things off they also said that there’s no precedent that should prevent a prison from holding a person naked in a cell.

“We do not suggest hold that prison officials cannot require inmates to sleep naked on the floor,” they wrote. “There can be any number of perfectly valid reasons for doing so. Our holding is limited to the extraordinary facts of this case, in which Taylor alleges that the floor on which he slept naked was covered in his and others’ human excrement.”

Weirdly this didn’t all work out as badly as it sounds as they did revive one of Taylor’s “deliberate indifference” claims. On top of that the court established that going forward this sort of thing is in fact a violation. Not for this guy but for the next one so good news for whoever that is.

Whenever I read about a Qualified Immunity case like this my brain basically short-circuits and I am not convinced I am actually understanding things properly because how could the law actually work like this? I mean I know how but still. I called up Matthew Segal a civil rights lawyer in Massachusetts who we last heard from in here talking about the fall out of the massive drug lab scandal in the state last year to talk me through this case and about Qualified Immunity more generally.

What are the conditions of the original complaint as you understand them?

Apparently it was a pro se complaint meaning he doesn’t have a lawyer. It alleges incredible amounts of awfulness. He was held in a cell for six days that was covered in feces. He had to sleep naked on the floor in that cell. There was nowhere he could go according to his complaint that was clean. The other thing he says is that there was no place he could go to the bathroom even to urinate because a grate supposedly in the floor was stopped up. He asked a guard for permission to leave the cell so he could go someplace else and they didn’t let him. Eventually he urinated on himself.

Based on your experience is all of this way outside of the normal bounds of prison conditions or is it unsurprising to hear?

Fortunately we don’t get a lot of reports about that sort to thing in Massachusetts. I have no idea whether these allegations are true, but they don’t seem to be outside of the realm of what prisons in America have looked like. In fact the court responded to these allegations by comparing this case to other cases in which prisoners have been held in horrific conditions, including another one involving a cell supposedly covered in feces. So there’s a body of case law the court consulted on just horrific prison conditions.

The court doesn’t dispute these conditions happened right?

Yes, but that’s not necessarily the court agreeing that this had happened. It was the court saying: Even if it’s true, here’s what the law has to say about that.

Where does Qualified Immunity come in here?

I should back up and explain a little about Qualified Immunity. There’s a statute which allows people to sue for violations of certain rights including Constitutional rights. It does not contain in the text any exception that looks like what has come to be known as Qualified Immunity. Qualified Immunity is a judge-made exception to that statute. When you hear sometimes conservatives talking about textualism, this is a doctrine that has no basis in the text of the statute it is interpreting.

It has a couple parts. It says you can’t hold government agents liable under this statute unless there’s been a violation of rights. That’s obvious. Secondly, even if there was a violation, they’re immune from liability unless the right in question was clearly established in case law at the time of the misconduct.

On top of that the Supreme Court has said that you can address the second thing without ever addressing the first. So if a right hasn’t been clearly established at the time a government agent does something, a court can just say, therefore, for that reason, the officer is immune, without ever addressing whether the officer did violate someone’s rights. It’s bad enough to create a doctrine that needlessly immunizes government agents for violations of rights, but it’s also worse than that because it provides a pathway for never establishing the right that needs to be clearly establish.

They just ignore the facts at question?

Yeah, they can say this right someone complained about isn’t clearly established, so you’re immune. And the next person that this happens to will also be immune because we’re not establishing this as a clear violation.

Insane. This drives people like you crazy right?

Yeah. I think it’s been an overlooked part of a lot debates including the debates about police violence. It’s understandable that people criticize police officers when they do things wrong, but a lot of times the true architects of the wrongdoing we see in the streets or in prisons are the courts. Because courts are the ones who made it easy for government agents to avoid any consequences for wrongdoing.

It’s probably not going to be much better going forward with the wave of Trump- appointed judges right?

Well… I mean, we’ll see. Fortunately there are some conservative groups, including Cato, which is good on this, who have criticized Qualified Immunity. But in general I would say it’s very worrying what we’re seeing from Trump-appointed judges. Although there was none on this case, two from Reagan and an H.W. Bush appointee I believe.

It’s also worrying, not just in questions about how judges will interpret this doctrine, but just interpreting social facts about the world. How bad is it to be made to sleep in feces for six days? Is it so, so bad that you don’t need a case directly on point to establish it’s bad? Or is it just kind of bad. Interpretations of social reality are really important to judging. I think there is real concern that when it comes to the reality of life for a prisoner, for a person of color, for a woman, we’re not going to see Trump-appointed judges get it right.

If I understand it correctly the judges here actually talked about how many days it’s no big deal to be held in a feces covered cell?

Yeah. They said we have a case where there’s feces in the cell, so they looked at their previous feces jurisprudence, and they said it wasn’t clearly established at the time of the facts of this case that making someone sleep on the floor of a feces covered cell for six days was a violation of their rights. Fortunately they did hold it was a violation of this person rights, just one the officers are immune from. So this wasn’t the worst possible outcome we see in Qualified Immunity. The court did have the option to say it wasn’t a violation at all. The next time this happens, now, presumably, the prisoner would have a lawsuit. Or hopefully it won’t happen again because government officials now know this is a violation.

Now they know. Great.

So this isn’t as bad as it might have been. But what’s so stunning about these cases, is, one, this doctrine is terrible and invites all kinds of violations of rights. But even in the confines of the doctrine, courts do have the option of saying this is so bad there doesn’t need to be a comparable case directly on point. If they had pulled out all this man’s fingernails, and there wasn’t a case on that, couldn’t they have just said that’s a violation of a man’s rights?

Here it should be so obvious to any human being, including human beings that are prison guards, that you can’t make someone sleep naked in a feces covered cell for six days. There shouldn’t have needed to already be a case.

The law here perverts common sense and decency in a way.

Right. At the end of the day, although we talk about our law enforcement officers and government officials being held to a higher standard, the Qualified Immunity doctrine holds them to a lesser standard. A regular person would be expected to understand this is a horrible thing to do someone without…

If you did this to your children…

Right. A parent who did this to their children could be expected to have their children removed from them immediately.

This is in striking contrast to the other thing going on in the Fifth Circuit, the DeRay Mckesson case right? Where is that at?

DeRay Mckesson was sued by a police officer. He helped to lead a protest, and during that someone threw something that hit a police officer. The police officer sued DeRay alleging he negligently led the protest and is responsible for the injury to the officer. An injury he didn’t cause, promote, or celebrate. The Fifth Circuit has held the lawsuit can proceed. The contrast I was trying to draw was this utter failure to hold government agents accountable for obvious misconduct on one hand, and on the other hand willingness to hold a civil rights leader accountable for something that’s not even misconduct.

Where do you see Qualified Immunity going in the future?

It will be really important to see what the new judges do with doctrine. Government agents will continue to do as much harm as courts permit them to do. It’s difficult to imagine the problem of government and police violence, that these problems will be solved, unless courts make a change.

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